Charges Dropped Against Texas Open Carry Activist

On 27 February, 2016, Brett Sanders was arrested while openly carrying a firearm in Texas. He had refused to show the officers of the Southlake, Texas, Police Department, any identification or a Texas carry permit. Brett Sanders is an open carry and liberty activist.

The legal ability of Texas police officers to demand to see a carry permit of people openly carrying firearms, was hotly debated during the passage of the law that restored the right to openly carry modern pistols in Texas.

A clause stating that officers could not demand a permit without probable cause was removed during the debate. Some legislators claimed the clause was redundant; that it was already settled law that the police could not demand a permit without probable cause. Others claimed that police could demand to see a permit for anyone openly carrying. The issue was not resolved in the legislation.

Brett Sanders appears to be one of the first arrested for refusing to show a permit while openly carrying a modern handgun under the new law. There may be others that I have not heard of.

Sanders used Cell411 to record the incident. Cell411 is an app that livestreams video from the cell phone to a group of people that you designate. From Cell411:

Cell 411 allows you to create custom cells or groups of your friends, neighbors or family members and alert them whenever you need help; they will receive your exact location with turn-by-turn directions to come and assist you.

Whether you have a flat tire, you find yourself in danger or need medical assistance, you can leverage the power of large groups of trusted people to call for help and receive it. We even support public groups that allow entire cities, companies or neighborhoods to join and collaborate on solving emergencies in real time.

The response from the group of activists to Sanders case was so quick and effective, that it delayed an attorney from getting Sanders out on bail for a few minutes. From brettsanders.me:

Thanks to Cell411, I was able to livestream my location and video of the entire arrest which mobilized a massive outpouring of support and angry calls to the jail where I was being caged. So many calls were pouring in that it actually delayed my lawyers efforts to bail me out –well worth it in my opinion. Nonetheless, a friend of liberty and lawyer Alex Kim was able to coordinate my bond without any communication from me. I only spent two hours in a cage as a result.

Texas Law Shield took Brett Sanders case. He is one of their members. Sanders says that he does not have a Texas carry permit, but a few days ago, all charges against him were dismissed. Sanders was willing to make this a test case of whether police could demand to see a carry permit, without probable cause to do so. The prosecutor likely did not want this to be the test case.

I suspect this will be the trend in future cases. If there are no circumstances that would combine with the open carry of a firearm to create probable cause, there is no probable cause.

Wisconsin Attorney General J. B. Van Hollen ruled that open carry was not disorderly conduct, and that police could not stop people who were openly carrying without some other factor being present. That ruling was in 2009, before the shall issue Wisconsin law was passed. From jsonline.com:

His advisory was most clear on that point. “The Department (of Justice) believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge,” the Republican attorney general wrote in the memo.

Other states have followed Wisconsin’s lead, clearly stating that the mere open carry of a firearm is not disorderly conduct.

There are differences. Open carry was always legal in Wisconsin, even if the police in metropolitan areas had effectively banned it by charging open carriers with disorderly conduct.

While the open carry of handguns in Texas was once illegal, it has always been lawful to open carry or display a long gun. Used to see rifles and shotguns in the back windows of pickups when I was growing up. This fact would tend to undermine any claim that the open carry of a firearm is per se disorderly conduct. Not to mention that the legislature would not have approved the open carry of handguns if such act, by itself, would disrupt the public peace or cause alarm. Therefore, I don’t believe the Texas courts will find probable cause to detain for open carry unless other circumstances exist to justify the stop. Having said that, this and other activists would be wise to remember that Texas is not a constitutional carry state. A LTC is still required to carry, open or concealed.

That’s intereting that Texas Law Shield took the case. They can do whatever they want, of course, but using the TLS name suggests this case was taken under the auspices of the TLS program.

It could not have been, though, since one must “use” the firearm for the TLS program’s protections to kick in. The program also doesn’t cover your defense for illegally carrying a firearm, as unlicensed on body carry would be.

TLS (of which my wife and I are members) can take whatever case they want. They should be careful, though, not to confuse the public by appearing to contradict their program’s rules.

Criminals want to take their victims by SURPRISE and OC limits that surprise if the victim is paying attention. On top of that most serious criminals already have a rap sheet with felony convictions and are known to police OC would simply be inviting the cops to arrest them.

But special Shannon says that you can’t tell a bad guy with a gun from a good guy with a gun (well, when she is not denying there is such a thing as a good guy with a gun). Because, you know, bad guys will start open carrying once they figure out police won’t both them because the evil gun lobby has tied police hands.

Not shocking news that Southlake PD would harass an open carry-er doing nothing else illegal. From what I remember from living in the area a few years back, it’s a fairly affluent suburb of the Ft Worth/Dallas metro area aka the cops probably don’t have much else to do but write traffic tickets.

Do you know whether he was actually ever actually “charged” with UCW or if he was only arrested? Or did the prosecutor reject the case rather than filing it? Arrested does not the same thing as being “charged.” And rejecting a case is not the same thing as dismissing. In order to dismiss a case it has to have first been accepted and filed by the prosecutor in a court.

I only ask because there sometimes seems to be a lot of confusion over the legal meaning of the terms “charged” and “dismissed” and reporting on the manner in which cases are disposed of is often very vague, and sometimes unintentionally misleading.

If the prosecutor actually rejected the case before filing it then maybe some kudos, or at least benefit of the doubt, is in order for applying a correct understanding of the 4th Amendment to the case. If it was actually filed in a court and then later dismissed, then the assertion that he didn’t want to be the test case may be correct. But, without more information, I don’t think we should assume the prosecutors motives were necessarily as insidious as the article makes it sound.

After watching the video in full it’s clear the guy was trying to antagonize the officer and the officer was actually trying to have a cordial encounter. That Sanders guy is a Jerk.

The officer was trying to do his job and is a human. Maybe he didn’t mak his decision based on a perfect legal understanding but he was trying to be reasonable. After seeing this guy’s behavior and the way he misbehaved toward those officers I have no sympathy or respect for him at all, even if I do agree with the point he was trying to advocate for. That is not how you win the battle of ideas. Sanders is no hero here.

Umm, but he won. He proved a point, that carrying isn’t probable cause. I don’t care if was a jerk, this case needs to be tried and he metaphorically took the bullet. If the prosecutor won’t send a case where the guy is clearly a jerk on video to the cop to a grand jury, he’s not gonna try it ever cause it’s definitely gonna set a precedent they don’t want. This is what’s gonna happen when cops harass open carriers now. So screw it, hes a hero. Not a perfect one, but that’s the world we live in.

The position you seem to be taking is that the prosecutor should continue to prosecute someone even though he knows the offense purported to have been committed is countermanded by the 4th amendment (aside from the fact that he acted like a jerk).

@Sam I Am Yeah, but I call shenanigans on the rulings. Most law is written at an elementary level, and let’s face it, there’s not all that much law they have to memorize. They just have to know the basics and can look up the specifics in case need be. While people say that there are tens of thousands of pages of legal code, we’re not asking them to memorize tax law so they can enforce that, too.

Supposedly guns and firearms crimes are one of the “worst,” yet we are giving cops an excuse not to know the laws surrounding the “worst” crime? There aren’t that many applicable gun laws per state that they have to worry about. What, a couple of paragraphs if it were written in prose form? We expect middle school kids to learn that immediately.

And agencies are continually issued update refreshers. For example, in Michigan the Michigan State Police issue legal update newsletters continually that go over topics. We’ve had several on open carry, they they tell cops that OC is legal, and yes, they can do it on school grounds, and no, you cannot stop people and demand ID. This stuff happens daily all across the US. (One reason they do this is because laws change, but also because of, um, other reasons).

If they think learning the laws they are supposed to enforce is too hard, try learning all you need to to be an electrical engineer or good computer engineering or computer science student. There are other occupations that require more memorization (although maybe less intelligence) 🙂 Medicine and law come to mind.

Cops are people to and they make mistakes just like you and me. And they have gotten a lot of conflicting information on this issue, no thanks to anyone in the legislature.

If you think you know every law on the books and every constitutional implication of those laws under every possible combination of circumstances and could provide error-free policing, then maybe you should go be a cop and see if you don’t make a mistake every now and then.

The dude got arrested, which is apparently what he wanted so he wasn’t even inconvenienced, the case got dismissed, dropped, or rejected like it probably should have, and he’ll probably get his bond money back. Look all you want but there just isn’t a miscarriage of justice here.

Colby, I’m not saying a cop knows every law ever made. We know they don’t because we have many audio, and even sometimes video recordings from their own dashcams, showing where they are looking up laws to find things to charge people with. You know, contempt of cop. So we know they don’t know and recall everything.

However, a cop has to write down a statute violation, correct? Therefore if he is citing a specific state law he must know what he is citing one for, right? I assume the cop wrote down Sec. 411.205. Then I assume that the prosecutor didn’t prosecute because there is zero criminal penalty for violating the law. You know, just like there are no criminal penalties for most municipal employees for violating state firearms preemption all across the United States.

§ 38.02. FAILURE TO IDENTIFY.
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

Based on what you are quoting, it seems it only applies to someone who has already been arrested. No where was it stated that he refused any of that information after the arrest. Unless I misread something, he refused to give that info before he was unjustly placed into custodial detention.

Officers could of handled better, If it was me. Ask Kindly for some identification. tell the person it is not a crime to OC but it would be helpful to the officer if he could see some identification. Again pleasant personality will go along way.
FYI filming a Police vehicle is going to draw suspicion. Just my thoughts.

If I were a cop – I would have just ignored him. Let him stand in the sun all day next to the highway where cars are speeding by at body splattering speeds. Eventually he’ll get bored and pack up. For a cop – attention should be given to victims of crime – not political attention seekers. If he’s not hurting anybody – who cares?

Sorry, but if an apparently BLM activist told me he didn’t have to show his DL and told me to get in my Patrol Car and leave…he would have a problem! Is this what it has come to? I guess this guy was bored and said hey I’ll get out of Mom’s basement and see if I can go get arrested and film it so I can show people on the Youtube that I am a A$$ hat!

Look I am as pro-firearms rights and certainly pro-the-rest-of-our-rights as the next guy. But a lot of people (including those who like to say how “the cops don’t know the law or our rights” types of people) actually don’t know the law, or the rights they claim to have etc.

“The right to remain silent” is DURING QUESTIONING *after arrest* — it’s not a Right to Never Say A Word To The Governmental Officials You May Come Into Contact With. Not even.

Similarly, for example, Police — CONTRARY TO EXPERT OPINIONS HERE AND THERE– do NOT need to “read you your rights” aka the Miranda Warning after they arrest you. *They only need to do that if they intend to question you* — if they for example SEE YOU committing a crime, and have no need to question you about it, because they intend to simply book you on the charge and go to court and the officer will testify saying “yes, I saw Joe Blow holding his gun on the cashier and demanding the money, then fleeing out the front of the store where I apprehended him” — they may have no desire to question you, therefore, no need to even read you your rights aka The Miranda Warning. — this is a VERY common example of a mistaken application of the laws by people “who know their rights and the law!”

I can give you another great one- I am in the booze biz, and have done some time in retail. A drunk 20s-30s young scumbag came in once in the late afternoon/early evening and one of my cashiers didn’t feel comfortable serving him as he was already intoxicated (which IS the law, in fact) — he was explained that, and of course he immediately starts berating the poor girl and guy who came to back her up, getting racial and ethnic etc. They are doing their best to be polite when I tell him he has to leave , he says he ain’t going anywhere until I call him a cab, “female dog, get me a cab and maybe I’ll leave, otherwise I’ll stay here calling them “female dogs” all night …. I said, No, you can leave now…. MAKE ME , Ok I’ll call you cab, no problem, hello 911, I need some police etc. Ok your ride is on the way. He winds up getting arrested as he sees the cops pull into the parking lot, tries to run, etc. ANYWAY, one of my guys comes up to me almost apologetically, and explains “Boss …. Thanks for the backup.. but you really screwed up, YOU could have gone to jail! He has the right to a cab!” uhh, WTF? “He has the right to be called a cab if he demands it!!!” He most certainly does not….. “Well… I think he does…but you can’t argue HE DEFINITELY has the right to make a phone call! Haven’t you seen any police shows!!! You HAVE to let him make a phone call!!! ” —- Had no idea what he was talking about, but was positive he knew “the law” and “his rights”.

The reason I say all this is because you never know how exact your interpretation of a law actually is, how accurate your knowledge of laws and rights are ,etc, or what a police officer, then judge, then jury will find after the fact…. It’s just too easy to believe you’re 100% right when you may not be.

Right and what I was trying to point out was, we weren’t even in jail or talking about that- this kid not only believed people have an absolute right to have a cab called for them by the wine shop / liquor store they’re in, he was ABSOLUTELY convinced that the bad guy and frankly everyone else was GUARANTEED the right to make a phone call- basically from anywhere! I didn’t mean to hurt his feelings or try to argue with him, but it’s shocking how many people not only “know the law’ but ‘know their rights!!!” AND those rights don’t exist in the least.

I’ve been told the opposite by police officers during a citizens forum. That is that as soon as the officer puts you in any position that prevents you from peaceable leaving the premise, it is effectively and arrest and they are required to read you your rights.

My point about different standards of the awareness of germane las was/is that police have NO requirement to know ANY law, if they are “acting on good faith”. Whereas private citizens are held accountable for complete, perfect and total knowledge of every law, in every circumstance (‘ignorance of the law is no excuse’). When a society allow “authorities” an exemption from the laws imposed on the public, that society is no longer “free”; they are serfs and vassals.

trolls are out in force today. @some guy – Maybe before you lecture me about the attitude of the open carrier, you should temper yours. Personally, if I haven’t broken the law and you accost me and demand papers, I’d get less than polite also.

Actually Matt in TX, you know me; I’ve OC’d here in NM for almost 9 years. The OC Guy was an ass.

I was politely told by a new cop here in NM, after he stopped me for a broken tail lite, that he needed to see my OC firearm to see if it was stolen. I politely told him in return he was in violation of NM law, (our POV is an extention of our home) that I did not need to show him my firearm and that he better call for his supervisor before he crossed the line into violating my civil rights.

The supervisor showed up, told the Newby that he was out of line, apologized to me and I went on my way.

Being polite, if the cop is polite, goes along way, and don’t waste your time arguing with the beat cop, get his supervisor to show up.

Rather than going for the old Youtube standby responses of “Am I being detained,” or “I don’t answer questions,” it’d be much more beneficial as an activist to actually know the laws you’re standing up for or against, and be able to intelligently explain them to the cops as to why they are wrong.

I’m glad the guy’s charges were dismissed, but videos like this annoy the hell out of me. Either be an activist or be an asshat on Youtube.

Asking the question of if your being detained or under arrest is moot. The courts have long held that an officer has no duty to tell the truth when they are inverigating a crime. They can lie and try and deceive to try and get a confession.

Damn Straight James!
Congress should just pass a law that says people who piss off the police get charged with a POP crime. No more beating around the bush with this backdoor obstruction nonsense. Cops shouldn’t have to “look” for something to charge people when they are pissed. Instead, they can just arrest them on POP charges. Sounds Great!

Whatever you choose to call it, the arrest is a willful criminal act, and the man falsely accused of a crime because some badge toting felon didn’t like him has earned the moral right (some might say he’s stuck with a moral duty) to end the false arrestor’s parasitic criminal life at any time or place he chooses.

Wow flared up feels in here. Honestly why can’t you flip open your id and be on your way, ? Is it the slippery slope that may ensue like ID gun, then address, finger prints, blood draw for drugs, dui test, urine test or whatever random first response/leo sop they could try and require Citizen to doll but tbh if your legal why not just flash the ID and move along
I honestly don’t think anyone should be on the side of the road with a gun like that, it’s for cars. You want to drive by some guy standing on the road that can hit your window almost point blank, no. Walk on the side walk or Normal places. I don’t drive my car on the sidewalk while concealed carry. I just don’t get the people, he didn’t ” try” any case or set any precedent. He did nothing but waste our time and money.

Absent the 411 app and Its formidable potential as demonstrated, this would have been a different outcome that would have bestowed upon Mr. Sanders, a host of legal issues and considerable loss of income.

Does Texas law compel one to notify the officer when they are being recorded? This was not clarified. Incredibly, some states do. Mr. Sanders didn’t state his intention of recording and there wasn’t mention of any repercussion to his credit. Voice recording accompanied by video is quickly becoming essential to the safety of not only ourselves, as we delve deeper into the age of hyper surveillance, but to the safety of cops who are being targeted for race crimes.

Going after a lone bystander such as Mr. Sanders, who the police knew at the time of arrest was a law abiding person, only tends to fuel the perception of overreach by law enforcement. Policing is a job of public administration. The police must strive to maintain an amicable relationship that builds trust and provides assurance that communication goes both ways. Being overzealous can end in an unwanted outcome, including but not limited to, the dismissal of charges. Arresting someone when the situation is unclear at best then shrugging your duty to know the law to the district attorney, serves to cast a doubt of competency or worse, a sense of hostility. Allowing someone to go on their way is not the end of the world. Should it be determined later that the subject had violated a law, the officer already has his pedigree and may proceed to the arrest upon his future encounter with that subject.

In this instance, the dismissal of the charges of Discon, will serve notice to cops on the beat that our second amendment rights are ours to cherish and they shall not be infringed upon. A public declaratory statement to that effect followed by an apology by the police Commissioner or Chief of Southlake PD, would go a long way to reassure Its citizens of that understanding.

I feel like this video was staged by an activist that happened to be open carrying. All things considered doesn’t law enforcement deal with enough BS. Great entertainment Barry, have you tried, since you are so familiar with all the law to participate and change something thru the channels established by the same constitution. But then you did get on the tag, and probably your you tube account got that many more hits, so mission accomplished, more hype. Nothing real accomplished except tax payers picking up the tab while the government sorted out your action’s legal ramifications. Isn’t this issue already solved since Texas made it’s decision? I’ve been stopped and detained temporarily as an open carrier, and now have my Concealed carry permit here in NC. Thankfully my parents gave me enough sense to be respectful and honest with law enforcement and I’ve never felt compelled to voice my opinions like this guy did.